UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 ORIGINAL -. PATRICK K. O'TOOLE United States Attorney MICHAEL G. WHEAT Assistant U.S. Attorney California State Bar No Federal Office Building 880 Front Street, Room 6293 San Diego, California Telephone: (619) Attorneys for Plaintiff United States of America " I3 '! k..h UNITED STATES DISTRICT COURT 02 Hay I0 PI1 2: 27 SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. MOHDAR MOHAMED ABDOULAH, Defendant. Case No. 01-CR-3240-W DATE: May 13, 2002 TIME: 2:00 p.m. ADDENDUM TO GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS TO: (1) DISMISS INDICTMENT DUE TO - DUPLICITY: (2) CONSOLIDATE COUNTS DUE TO MULTIPLICITY; (3) SUPPRESS EVIDENCE; AND (4) LEAVE TO FILE MOTIONS TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES, AND UNITED STATES' MOTION FOR RECIPROCAL DISCOVERY The UNITED STATES OF AMERICAthrough its counsel Patrick O'Toole, United States Attorney, and Michael-G. Wheat, Assistant U. S. Attorney, hereby submits declarations from Special Agent Daniel Gonzalez, Federal Bureau of Investigation and Special Agent James Nagel, Bureau --., \ \ \\ -- ' --.

2 ~f Diplomatic Security, United States Department of State. These declarations are to be included in the above-entitled Government's Response. DATED: May 9,2002 Respectfully submitted, PATRICK K. O'TOOLE Ugted Statwttomey

3 DECLARATION OF DANIEL GONZALEZ Special Agent Federal Bureau of Investigation

4 DECLARATION OF DANIEL GONZALEZ I, Daniel Gonzalez, do hereby say under penalty of ~erjury : 1. I am employed as a Special Agent for the Federal 3ureau of Investigation (FBI), and have been so employed for :welve (12) years. I am currently assigned to the San Diego Iivision and investigate a variety of criminal offenses, ~articularly Public Corruption and Terrorism. 2. This affidavit is submitted in response to Iotions to be heard on May 13, 2002, by Defendant Mohdar Iohamed Abdoulah [Def endantl. 3. On Tuesday, September 18, 2001, Defendant was mcountered by the FBI while in his car on his way to class at ;an Diego State University [SDSU]. No "traffic stop" was )erformed on Defendant and his car. The Defendant was in his :ar, stopped in line with a few other cars on the public street raiting for traffic to proceed into a student parking lot at ;DSU. I was in my car and was stopped in traffic parallel to :he Defendant's car. I identified myself as an FBI agent, :hrough my window, and asked the Defendant if he was willing to lnswer some questions. The Defendant said he would talk to me, ~nd further stated he was expecting the FBI to contact him. 4. The Defendant was immediately told that he was lot under arrest nor was he being detained. The Defendant was ldvised that if he answered any questions that it would be roluntary. The Defendant never asked the agents if he needed in attorney, nor indicated in any way that he wanted an ~ttorney. The Defendant stated he did not want to leave, or go

5 to class because he wanted to know what the FBI was going to ask him. The Defendant voluntarily sat in SA Frank Teixeira's car along with SA Teixeira and me and began to answer questions. Shortly thereafter, Defendant voluntarily agreed to conduct the interview at a location other than the school parking lot. Defendant voluntarily agreed and allowed the agents to drive him, and his car, to a nearby Denny's restaurant. The interview was continued at a table, in a public area, inside Denny's. Defendant was told, and understood that he was free to leave at any time during the interview, and in fact ultimately did so by exercising his option to leave when he told the agents he needed to go to work at the Texaco Gas Station. 5. At the conclusion of this first interview, Defendant agreed to meet with the agents after he got off work the following evening. It was agreed that the second interview would be conducted at the same Denny's restaurant. That evening, September 19, 2001, Defendant arrived at the restaurant driving his car and voluntarily agreed to continue the interview. However, Denny's did not have an available table, so we all walked across the parking lot next door to the Marie Callanderrs restaurant to conduct the interview. The interview was conducted in a public area at a table inside the restaurant. In addition, during the second interview Defendant elected to discuss his current situation between him and his fiancee/girlfriend, but he did not want to identify her by name to the agents. The Defendant partially identified her as a Puerto Rican/American, sixteen years of age, who attended a 2

6 local San Diego high school and she still resided with her mother. He stated that he wanted to marry her, however, her mother did not approve of her daughter dating him. 6. At the conclusion of the second interview the Defendant agreed to meet with the agents, at the same Denny's restaurant, the following evening [September 20, for a third interview. On September 20, 2002, the Defendant arrived st the restaurant driving his car and voluntarily agreed to the third interview. At the third interview, at Denny's, the Defendant was asked if he would take a polygraph examination administered by the FBI. The Defendant agreed that he would take the polygraph examination at the FBI office the following llay at 10 :00 a.m. However, on September 21, 2001, Defendant failed to appear at the FBI office for the polygraph examination. At no time did the agents ever instruct Defendant to go to his Saranac Street apartment complex, "where other persons who knew the hijackers were living," and on behalf of :he FBI, ask them to contact the FBI and tell agents what they mew. 7. At no time during any of the interviews of Iefendant did agents take exemplars or even view any nandwriting samples of the Defendant. 8. I did apply for and obtain search warrants for :he Defendant's car and residence based on assistance Defendant 3rovided to the September 11, 2001 hijackers in acclimating :hem to San Diego, assisting them [the hijackers] with their?ersonal affairs after arriving in the United States, and an item seen in the Defendants car during an inventory search of 3

7 the car after his arrest. After Defendant's arrest, agents secured his car at the FBI office. During the inventory search [to secure any valuables or any potentially dangerous items which might be a threat to agents safety], a spiral letter size notebook was seen in an open plastic bag. The notebook contained references to planes falling from the sky, mass killings and hijacking. The page was viewed by inventorying agents after further examining the bag when it was removed from the car and placed on the ground making a noise indicating something heavy or hard was located at the bottom. The agents who discovered the notebook were not the interviewing agents 3nd were not privy to the details of the interviews with the Defendant. 9. I did not read or see the handwriting on the page in the notebook which made references to the planes falling from the sky, mass killings and hijacking. This information was relayed to me by the agents conducting the inventory. In 3 large investigation, such as those concerning the attacks on the World Trade Center and Pentagon on September 11, 2001, an 3ffiant for a search warrant relies on colleagues to assist in the gathering of evidence in any instant offense. Agents in this case were not in a position to determine that Defendant Mas or was not the author of the entries in the notebook iiscovered in Defendant's car. The notebook was found inside )efendantls car, for which he was the sole registered owner. 4t the time the notebook was discovered, the inventorying 3gents could not determined the date the entries were written. I did not make omissions to mislead the magistrate in obtaining 4

8 the search warrants. In reference to the notebook, I only included the facts reasonablely known to me at the time, i.e. that a notebook referencing highjacking and mass murder was found in Defendant's car. 10. I described the Defendant as an associate of the hijackers due to the Defendant telling the interviewing agents that he considered his relationship with the hijackers as a -lose relationship. Based upon our interviews with Defendant, the lack of recent contact between the Defendant and the nijackers was not due to a choice made by the Defendant. 3efendant related that the hijackers elected not to tell him [Defendant] their forwarding address. The Defendant told the interviewing agents that he pursued avenues to maintain contact uith the hijackers but to no avail. 11. The affidavit in support of the search warrant lid not mention that the Defendant "cooperated" with the interviewing agents because we believed that while Defendant iid make himself available for interview, he was not answering 3ur questions truthfully and honestly. Defendant appeared to %joy playing with us during the interviews. Despite receiving :he polygraph examination questions in advance, Defendant Failed to show up to take the polygraph examination as he had ~reviously agreed to do. Defendant was told he would be asked if he had any participation or knowledge of any terrorist ~ttacks or future attacks to include the terrorist activities >f the hijackers. Based on my contacts with Defendant, 1 felt :hat the he [Defendant] had rehearsed his answers prior to the interviews. The Defendant continuously made body movements or

9 gestures to give the impression to the interviewing agents that he knew more than what he was telling. The Defendant told the agents that they needed more knowledge of Islam and the Muslim zulture, to include Jihad, to understand the events of September 11, Agents did not disregard the scope of the darrants in its execution. The documents seized at Defendant's residence were seized as correspondence between co-conspirators snd their aiders and abettors and/or third parties who may not nave any knowledge of the conspiracy but may have unwittingly?rovided assistance to the conspirators, which may disclose information identifying the participants, other means of zlommunication used in furtherance of this conspiracy, lescription of their plans relating to the acts of terrorism lescribed above, and/or further acts contemplated by these individuals, or may identify the current whereabouts or past residences of others involved in this conspiracy. The locuments found at Defendant's residence, that were written in irabic were seized because agents did not speak or read the irabic language. It was not possible to obtain the assistance ~f an Arabic language specialist at the time of the execution )f the warrant. I had been informed by an INS special agent :hat Defendant was lawfully in the United States, having ~btained political asylum from Somalia. 13. The Yemen Personal Identification Card, was seized as "any other documents which relate to the events of September 11, 2001, and the conspiracy between individuals laving direct or indirect involvement in the planning of the 6

10 vents of September 11, 2001." The document was used by the efendant to enter the United States and/or fraudulently remain n the United States in order to help the before mentioned ijackers and/or any future hijackers in the furtherance of errorist activities against people in the United States. declare under penalty of perjury that the foregoing is true nd correct. Executed on May 9, 2002; at San Diego, California. Daniel Gonzalez Special Agent, FBI

11 DECLARATION OF JAMES NAGEL Special Agent U.S. Department of State

12 DECLARATION OF JAMES NAGEL James Nagel, do hereby say under penalty 1. I am employed as a Special Agent for the Bureau of Diplomatic Security, United States Department of State, and have been so employed for 25 years. I am currently assigned to the San Diego Resident Office and investigate a variety of criminal offenses, particularly passport fraud and visa fraud. I am, or agents under my supervision, are assigned to the Joint Terrorism Task Force [JTTFI. 2. This affidavit is submitted in response to Motions to be heard on May 13, 2002, Mohamed Abdoulah [Defendant I. by Defendant Mohdar 3. After the terrorist attacks on the World Trade Center and Pentagon on September 11, 2001, State Department agents began a comprehensive review of visas issued to aliens from Al-Qaeda source countries [including Yemen] at United States Embassies and Consulates worldwide. Because of the high number of highjackers and associates who lived, worked, and I studied in the Southern District of California, special attention was directed at individuals who either indicated that they were destine for a school or a visit in San Diego, I. California. In addition, information had been received that some of the highjackers had entered the United States through Canada. This caused us to be particularly concerned with visas applied for and issued out of Canada. 4. Visa applications, including photographs of the recipients are regularly maintain at United States Embassies

13 ind Consulates for at least one year after the date of issue. Iowever, storage space permitting, they are regularly naintained for longer periods of time. 5. Because of the efforts made to review the visa applications and the storage parameters, I believe that )efendantl s December 10, 1998, "B2" [visitors visa1, applied ior and received at the United States Consulate, American hnbassy, Ottawa, Canada, in his Yemeni passport, would have,een discovered independent of the seizure of Defendant's Iemeni National Identification Card during a search warrant at lis residence on September 22, Defendant's December 10, 1998, 'B2" [visitors risa] was retrieved from the regularly maintained records of :he Department on October 4, The photograph on the visa.s nearly an exact image as the photograph contained in )efendantfs Immigration and Naturalization Service file issociated with his fraudulent claim for asylum from Somalia. 7 declare under penalty of perjury that the foregoing is true fnd correct. Executed on May 9, 2002; at San Diego, California. spdcial Agent, I Bureau of Diplomatic Security U.S. Department of State

14 UNITED STATES OF AMERICA SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) Criminal Case No. 00cr3240-W Plaintiff, ) 1 ) v. ) 1 CERTIFICATE OF SERVICE MOHDAR MOHAMED ABDOULAH, ) BY US. MAIL i Defendant. ) 1!T IS HEREBY CERTIFIED THAT: I, Ann M. Telles, am a citizen of the United States over the age of eighteen years and a resident,f San Diego County, Califomia. My business address is 880 Front Street, Room 6293, San Diego, Zalifomia I am not a party to the above-entitled action; and subsequent to filing with the Zlerk of the Court, I have deposited in the United States mail at San Diego, Califomia [and faxed], a :opy of the Addendum To Government's Response and Opposition to Defendant's Motions to: (1) Dismiss Indictment Due to Duplicity; (2) Consolidate Counts Due to Multiplicity; (3) Suppress Evidence; and (4) Leave to File Motions Together with Statement of Facts, Memorandum of Points and Authorities, and United States' Motion for Reciprocal Discovery addressed to: Kerry L. Steigenvalt 3555 Fourth Avenue San Diego, CA and Faxed to: he last known address, at which place there is delivery service of mail from the United States Postal jervice. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 9th day of May, 2002.